One of the first choices a new business must make is selecting a name for the company or its product.  A name is a lasting identification of a product or organization. Availability of the name may also be an issue with the Secretary of State and reserving a web domain. But, more importantly for many companies, is whether the name is eligible for federal trademark protection? Think SAND to find a name that will likely qualify for protection. What is SAND?

 

1. Suggestive

 

Suggestive marks require imagination, thought, or insight to reach a conclusion as to the nature of the goods or services. For example, Sports Authority. A place where consumers could buy athletic gear but isn’t really a board setting rules for sports.

 

2. Arbitrary

 

Arbitrary feature a known word used in an unexpected way, whereas fanciful marks feature words that have been created for the sole purpose of functioning as the trademark. For example, Apple is the name of a brand of consumer electronics but many people would typically think of fruit.

 

3. Non-Generic

 

These are the marks that are incapable of identifying the source of the good or service. For example, “Ziploc” for a brand of plastic bags. However a generic term would be something like “Baggies” or otherwise reflective of a common or class name for the good or service.

 

 

4. Doesn’t Describe

 

The name does not merely describe the good or service intended to be offered. Unless, there has been some kind of secondary meaning associated with the name. For example, Kleenex v. Tissue.

 

 

It makes sense for a company to want to name itself after the product or service it provides. Doing so saves valuable resources in marketing and advertising because the type of company would be self evident to the public. Unfortunately, describing the product or service being offered in the company name is considered “merely descriptive” in the eyes of the Trademark Trial and Appeal Board (TTAB).

 

Names that fit the SAND model will likely be able to qualify for trademark protection. It may seem like there are some sales or branding trade-offs when identifying a name that meets this criteria. However, Consumers are savvy and will grow to identify your company with your suggestive, arbitrary, fanciful name. Just think, nobody actually thinks Apple is in the apple selling business.